Court name
Supreme Court
Case name
S v Longer
Media neutral citation
[2000] NASC 4















CASE NO.: SA 1/99



IN THE SUPREME COURT OF NAMIBIA







In the matter between







PHILLIPUS LONGER APPELLANT



And



THE STATE RESPONDENT







CORAM:, Teek, A.J.A., Levy, A.J.A., O'Linn, A.J.A.



HEARD ON: 01/10/1999 and 10/10/2000



DELIVERED ON: 2000/12/08



_____________________________________________________________________________



APPEAL JUDGMENT



_____________________________________________________________________________







O'LINN, A.J.A.: The appellant applied for condonation
of the late filing of his appeal against conviction in the
magistrate's court of Swakopmund on 5 charges of cheque fraud and
against the sentences imposed.







A full bench of the High Court refused condonation on 13th
December 1999.







Appellant then appealed to the Supreme Court without special leave of
either the High Court or Supreme Court. This the appellant was
entitled to do on the clear understanding that the appeal was against
the order refusing condonation and not against the conviction and
sentence, even though the merits of an appeal against the conviction
and sentence are always part of the consideration of an application
for condonation. The Supreme Court in such a case has no
jurisdiction to deal with such an appeal as an appeal against
conviction and sentence.







Consequently, if this Court upholds the appeal against the refusal to
grant condonation, the appeal against conviction and sentence must be
heard in the High Court. On the other hand, if this Court dismisses
the appeal against the refusal of condonation, that is the end of the
matter.1







I now proceed to deal with the appeal against the refusal of
condonation and will deal for this purpose with the prospects of
success of the proposed appeal against conviction and sentence.







The following facts are common cause or not in dispute:








  1. The appellant drew five cheques on his bank, the Standard Bank,
    handed in respectively as Exhibits "A", "B",
    "C", "D" and "E". The cheques were
    drawn on the following dates and for the following amounts:








8th February 1991, cheque 017 for N$120,00;



9th February 1991, cheque 018 for N$20,00;



18th February 1991, cheque 021 for N$100,00;



18th February 1991, cheque 020, for N$50,00;



18th February 1991, cheque 022, for N$80,00.








  1. All the cheques were cash cheques which were given by the appellant
    to the complainant, Mr. Kluft in part for goods and in part for
    cash.









  1. None of the cheques were post-dated.









  1. The cheques were all drawn on appellant's bank, namely Standard Bank
    and deposited by complainant with his bank, the Commercial Bank.









  1. None of the cheques were met when presented and all were marked by
    appellant's bank - "Refer to drawer".









  1. The cheques were deposited by complainant in his bank account for
    collection by his bank and presented for payment to appellant's bank
    within 2 - 4 days from the date of the cheque as is apparent from
    the following dates and bank stamps on the cheques:








EXHIBIT "A": cheque dated 08/02/1991 for R120,00 -



stamped by Commercial Bank --/02/1991 (front)



stamped by Standard Bank 11/02/1991 (back)



stamped by Commercial Bank 12/02/1991 (back)



EXHIBIT "B": cheque dated 09/02/1991 for R20,00



stamped by Commercial Bank --/02/1991 (front)



stamped by Standard Bank 11/02/1991 (back)



Stamped by Commercial Bank 12/02/1991 (back)



EXHIBIT "C": cheque dated 18/02/1991 for R100,00



stamped by Commercial Bank 21/02/1991 (front)



stamped by Standard Bank 25/02/1991 (back)



stamped by Commercial Bank 22/02/1991 (back)



EXHIBIT "D": cheque dated 18/02/1991 for R50,00



stamped by Commercial Bank 21/02/1991 (front)



stamped by Standard Bank 22/02/1991 (back)



stamped by Commercial Bank 25/02/1991 (back)



EXHIBITH "E": cheque dated 18/02/1991 for R80,00



stamped by Commercial Bank 21/02/1991 (front)



stamped by Standard Bank 25/02/1991 (back)



stamped by Commercial Bank 22/02/1991 (back)








  1. The appellant's account with Standard Bank was in overdraft from 5 -
    25th February 1991 - thus extending over the whole of the
    period during which the cheques were drawn. On 27/2/91 he made a
    deposit on N$1211,05, probably his salary cheque and now had a
    credit balance of N$1 000,05. But unfortunately by the end of the
    next day his account was in overdraft once more.









  1. On the 5th February 1991, prior to the aforesaid period a
    cheque, No. 14, was apparently cashed or paid out by appellant's
    bank, when his credit balance was N$708,13, resulting immediately in
    a debit balance of N$141,87. On the 20th February,
    according to Exhibit "G", appellant's bank cashed a cheque
    for N$140,00. It is unknown by who these cheques were cashed. They
    were however, not presented by the complainant Kluft. Whether these
    two cheques were presented by the appellant himself or another
    person, is unknown.









  1. The complainant confronted the appellant after the cheques were
    returned "refer to drawer" and the appellant said that he
    was sorry about it and that he would pay complainant.








The complainant reminded the appellant later in 1991 when appellant
was stationed at the border-post between Swakopmund and Walvis Bay
that he had not paid.







Warrant Officer Uiseb informed the appellant of the case against him
when he was subsequently stationed at Uis.







No payment was however made to complainant until two days before the
commencement of the criminal trial in February 1993, two years after
the cheques were returned unpaid.








  1. When the charges were first put to the appellant at the section 115
    proceedings in the Swakopmund Magistrate's Court, after he was told
    by the presiding chairperson that he "may reveal his defence -
    but was not obliged to do so" appellant merely said:








"We have agreed that I should repay complainant. I gave him
money back - on 2/2/93. I telegraphed the money to complainant and I
feel there should be no charge against me."








  1. The appellant declined to testify at the end of the State case
    notwithstanding a warning by the presiding magistrate of the
    implications of the presumption contained in section 245 of Act 51
    of 1977.









  1. The only indication during the trial that the appellant thought that
    the cheques will be met was contained in the following question put
    by the appellant to the complainant in cross-examination:








"I believed that at time I presented cheques if cheques had been
paid in that time they would have been met as there would have been
funds available." Complainant Kluft replied: "The last
three cheques were banked three (3) days after we received the
cheques - there was no time delay".








  1. After conviction and during the sentence stage the appellant
    testified under oath and said: "Time of the commission of
    those offences wife was in hospital where she had undergone a
    cicearian and I was under financial pressure and that is why I went
    to complainant for some help".








Appellant also said that he "has presently financial crisis".







It has been argued before us on behalf of appellant that section 245
of the Criminal Procedure Act as well as sec. 236 is unconstitutional
because these provisions are in conflict with Art. 12 of the Namibian
Constitution.







In South Africa the Constitutional Court has decided that section 245
is unconstitutional in that it provides for a presumption and is
consequently in conflict with section 25(3)(c) of the interim
Constitution contained in South African Act 200 of 1993 providing for
a fair trial in which an accused person is presumed to be innocent
until proved guilty.2
The said interim Constitution has since been overtaken by the final
Constitution contained in the Constitution of South Africa, Act 108
of 1996.







There are several important differences between the relevant
provisions in the above-stated two Constitutions and the provisions
of Art. 12 and particularly Art. 12(d) of the Namibian Constitution.
Art. 12(d) provides:







"All persons charged with an offence shall be presumed innocent
until proved guilty according to law, after having had the
opportunity of calling witnesses and cross-examining those called
against them
."



(My emphasis added.)







The words "proved guilty according to law" and after
having had the opportunity of calling witnesses and cross-examining
those called against them
" do not appear in the South
African provisions. Furthermore the South African provisions provide
for a "general clause on limitation of rights" applicable
to all fundamental rights whereas in Namibia fundamental rights are
distinguished from "the right to fundamental freedoms" and
only the fundamental freedoms can be limited by the general
limitation clause.







The result arrived at in South Africa may consequently not
necessarily be the same as that in Namibia. It will for instance
have to be decided what is meant by the phrase "according to
law". Does it refer to common law, statute law, or customary
law or all or some of these manifestations of the law? In South
Africa, the Court in State v Coetzee & Ors, supra, relied
heavily on what the position was under the common law relating to the
State's duty to prove each and every criminal charge beyond
reasonable doubt.







In Namibia, the normal grammatical meaning would include the
above-stated manifestations of the law. Consequently the statute
law, which existed at the time when the Namibian Constitution became
operative, would be part of the law and that law included legal
presumptions, some justifiable, others not, which were accepted for
decades as part of Namibian law. The members of the Constituent
Assembly and their legal advisers were certainly aware that these
presumptions were part of the then existing law and if it was
intended to exclude all statutory provisions providing for
presumptions from the term "law" in Article 12(d), it would
have been easy to omit the words "according to law" or to
use different language.







I make these comments to explain the difficulties in merely following
the South African decisions in State v Coetzee and Others.







The issue has not been argued in depth before us. I find it
unnecessary to finally decide this issue in this judgment in view
thereof that even if the Court now finds section 245 and 236
unconstitutional, the invalidity would not be retrospective. And the
Court would still have to regard the sections in force until such
declaration of unconstitutionality and the appeal would still have to
be decided on the basis that the aforesaid sections were valid and
enforceable at all times relevant to this appeal.







This follows from the most recent decision of this Court in Myburgh
v Commercial Bank
, Strydom, C.J., who wrote the judgment of the
Court, stated:







"Seen in this context it follows that the words 'any law' in
Art. 25(1)(b) and 'all laws' in Art. 140(1) can only refer to
statutory enactments and not also the common law because in the first
instance such laws, which were in force immediately before
independence, remain in force until amended, repealed or declared
unconstitutional by a competent Court. The Constitution therefore
set up different schemes in regard tot he validity or invalidity of
the common law when in conflict with its provisions and the statutory
law. In the latter instance the statutory law immediately in force
on independence, remains in force until amended, repealed or declared
unconstitutional."3











Consequently the trial magistrate who convicted the appellant in
1991, was duty bound to regard sections 245 and 236 of the Criminal
Procedure Act 51 of 1977 as valid and to apply these provisions to
the case before him.







The crime of fraud can be defined as "the unlawful and
intentional making of a misrepresentation which causes actual
prejudice or which is potentially prejudicial to another"4







The requirement of intention in turn requires proof that the accused
must have been aware that his representation is false. But, as
Snyman points out:







"an accused can be said to be aware that his representation is
false, not only if he knows that it is false, but also if he has no
honest belief in its truth, or if he acts recklessly, careless as to
whether it is true or false. He can even be said to know that his
representation is false if, although suspicious of their correctness,
he intentionally abstains from checking on sources of information
with the express purpose of avoiding any doubts about the facts which
form the subject matter of the representation. All these rules,
applied in practice, it is submitted, are merely applications of the
rule that dolus eventualis suffices, that it is sufficient if
the accused foresees the possibility that his representation may be
false, but nevertheless decides to make it. …"5











The learned author Milton in South African Criminal Law and
Procedure
sets out the law on the point as follows:







"The locus classicus in regard to intent to deceive is
Derry v Peek, in which Lord Herschell said:







'Fraud is proved when it is shown that a false representation has
been made (1) knowingly or (2) without belief in its truth, or (3)
recklessly, careless whether it be true or false. Although I have
treated the second and third as distinct cases, I think the third is
but an instance of the second, for one who makes a statement under
such circumstances can have no real belief in its truth.'







Lord Herschell goes on to make it plain that the second case -absence
of an honest belief in the truth of the representation - includes
possibilities (1) and (2) in the above dictum. This
definition has been adopted in numerous South African cases, civil
and criminal, and notably by the Appellate Division in R v Myers.
Shorn of excess verbiage, however, all that is required is that X
must have made the representation foreseeing that it might be
false."6











I must pause here to remark that Hannah, J., and Frank, J., in their
judgement in the High Court set the requirements too high when they
said:







"The appellant elected not to give evidence and the only
question was whether the evidence established that at the time the
cheques were issued, the appellant knew or believed that they
would not be met."







When the appellant in the case dated and signed the cheques, he
represented that the cheques would be met on presentation. The
cheques were not met. The element of making a false representation
was consequently proved in each case.







The facts which I set out above which are common cause or not in
dispute, constitute at least a strong prima facie case that
the appellant could not have had and in fact did not have any honest
belief in the truth of the aforesaid representation. How could he
have had an honest belief, when he constantly had a debit balance and
when some cheques were met and other not. At least, he acted
recklessly - careless as to whether his representation was true or
false. Alternatively, he foresaw the possibility that his
representation may be false, but nevertheless decided to make it.







The appellant failed to testify. There was consequently no evidence
indicating that he honestly believed that the cheques would be met.
And the accused was the only person who was in a position to tell the
Court what his state of mind was, if it was in fact different from
the guilty state of mind reflected in the abovestated proven facts.







The appellant was a policeman. Although he was not assisted by
counsel, it would have been a simple matter for him to testify as to
his belief, if he had in fact an honest belief in the truth of his
representation.







In the circumstances, the strong prima facie proof was
converted into conclusive proof.7







I have read the judgment proposed by my brother Levy, A.J.A., but do
not agree that the appeal must succeed. In my respectful view, the
appeal must be dismissed.







Although the learned Judge apparently accepts that the intention to
defraud can be in the form of dolus eventualis, he fails to
apply this principle to the facts as accepted by Law.







He says:







"These statements prove that applicant was permitted by the Bank
to operate his account in overdraft - even though certain cheques
were not met by the Bank.







The Bank did not close his account but met some cheques and charged
him interest on his overdraft. It is a fundamental principle that a
person cannot approbate and reprobate. The Bank was taking interest
and keeping his account open. It is reasonably possible that
applicant was lulled into a belief that cheques may or may not be met
because towards the end of the month the sum of N$1211,05 was to
be paid into the account. This amount was in fact paid into the
account on 27th February reducing the overdraft to N$1
000,05."



(My emphasis added.)











I make the following comments:








  1. If the appellant was "lulled into a belief that cheques may or
    may not be met", then the representation inherent in the
    drawing of his cheques and the handing of it to the complainant as
    payment for goods, he should have represented that the cheque "may
    or may not be met".








When he represented by implication that the cheque will be met, he
made a false representation.







He knew that the cheque may not be met and nevertheless handed the
cheque over to the complainant as payment for goods or in exchange
for cash and thus knowingly made a representation which was not true.
Alternatively, even if he entertained a belief that the cheques will
be met, the belief was not honest, because it was "the outcome
of a fraudulent diligence in ignorance.8







(ii) The last sentence in the above-quoted paragraph is incorrect in
that the overdraft was not reduced to N$1 000,05, but the overdraft
was replaced by a credit balance of N$1 000,05.












  1. The alleged indulgence by the appellant's bank to allow appellant to
    "operate this account in overdraft even though certain cheques
    were not met by the Bank", is exaggerated and too much reliance
    is placed on this factor.








After all, as shown above, none of the five cheques given during
February 1991 to complainant were met. The two cheques relied on
fall outside the period during which the five cheques given to
complainant were given and all dishonoured. The first one of the
above two i.e. No. 14 for N$850,00, was tendered and met on that same
date when there were sufficient funds in the Bank to cover all but
N$850,00. The second cheque relied on, i.e. No. 23 for N$40,00 on
20th February 1991, "was cashed for N$40,00 and met
by the Bank although applicant was in overdraft". This cheque
was apparently cashed by the appellant himself at his own bank. Both
this cheque and cheque No. 14 were not placed before Court and
neither the State, nor the defence led any evidence in this regard.
How the appellant had managed to cash cheque No. 14, is consequently
unknown.







After the 5th February when appellant's account once more
had a debit balance, no cheques drawn by appellant were honoured.







Although the appellant paid a cheque for N$1 201,05, apparently his
salary cheque into his banking account on 27th February
1991, he was again overdrawn by the end of the 28th. The
appellant apparently also paid his salary cheque for January 1991
into this banking account but by 5th February 1991, his
account again showed a debit balance and remained so until the 27th
February 1991 when he was in credit for one day only. Unfortunately,
Levy, A.J.A., stopped with the history of the appellant's account on
27th February. Appellant was overdrawn for the whole
period during which he gave cheques to complainant.







The complainant only managed to recover his money from appellant, two
years later, a few days before the commencement of the appellants
trial in the magistrate's court, Swakopmund.







It is consequently a gross overstatement to say - "these
statements prove that applicant was permitted by the Bank to operate
his account in overdraft even though certain cheques were not met
by the Bank
."







Similarly, the statement that the appellant "was lulled into a
belief that cheques may or may not be met because towards the
end of the month the sum of N$1 211,05
was to be paid into the
account
… " is much too generous to the appellant.
Furthermore, the reliance on the payment of N$1 211,05 on 27/02/91
gives a distorted picture, if the fact that appellant was again
overdrawn on the next day, is not mentioned and not brought into the
equation.







Apart from the implications of section 245 of the Criminal Procedure
Act, the effect of the appellant's failure to testify, had to weigh
heavily against him in the circumstance of this case. My learned
brother wrongly fails to give any consideration to this factor in his
proposed judgment.







The last argument of my learned brother Levy is formulated as
follows:







"Applying the principles in Blom's case, there is a
reasonable inference to be drawn from these facts that Kluft knew or
foresaw the possibility that when he presented cheques "C",
"D" and "E" for payment at Standard Bank they may
not be met and that he may have to wait for payment. In the
circumstances the inevitable inference that applicant intended to
deceive Kluft when he gave him the cheques cannot be drawn."







I wish to comment as follows:








  1. This argument restricts itself to the last three cheques. The first
    two cheques are ignored. If the excuse is valid for the last three
    cheques, it does not cover the first two.









  1. My learned brother applies a very novel approach. Instead of
    focussing on whether or not the appellant had reasonably foreseen
    that the cheques would not be met and nevertheless gave the cheques
    to complainant, he focuses on the possibility that the last three
    cheques would also not be met.








He now assumes, without the slightest evidence, that the complainant
knew that the last three cheques would not be met and accepted the
cheques simply as "acknowledgements of debt" as "a
business risk". But at the same time he relies on what the
appellant said in cross-examination of the complainant namely that he
expected the cheques to be met, not that Kluft accepted that the
cheques would not be met and accepted the cheques as a
"business risk" and "as acknowledgement of debt".







For such a unique defence, one would have expected at least an
allegation to that effect, at least in cross-examination.







The argument also relies heavily on the assumption that when
complainant received the last three cheques he knew the previous two
had not been honoured by the Bank. This assumption again is mere
speculation. No one knows whether or not complainant in the interim
received his bank statement and paid cheques and cheques marked R/D
from his banker.







The question not pondered by the learned judge is: If the
complainant Kluft accepted the cheques as a mere "acknowledgement
of debt" why did he deposit the cheques with his bank for
collection within three (3) days of receiving them?







Even if it is assumed that the complainant did foresee the
possibility that the last three cheques may not be met, this surely
does not mean that the appellant had no intention to defraud and that
he could be exonerated on that ground.







Far from him being protected by the mere possibility that the
complainant knew at the time of receiving the three cheques that the
first two had been dishonoured, the appellant had less justification
for a belief that the last three cheques would be honoured, than that
the first two would be honoured. Consequently, even if he had a bona
fide
belief that the first two cheques will be met, he could not
have had such a belief when he tendered the last three cheques to the
complainant.







It is trite law that even if the representee knows that the
representation is false when made, such fact does not assist the
representor, provided there is at least potential prejudice.
Obviously, when the representee merely suspects that the
representation is false, such fact cannot possibly assist the
representor. After referring to many decisions of the Courts on this
point, the learned author Milton concludes:







"Accordingly, it is the law that a person commits fraud where he
makes a representation which is not believed by and does not deceive
the person to whom it is addressed (provided the misrepresentation is
potentially prejudicial)".9






























It follows from the above that there are no reasonable prospects of
success on appeal.







In the result, in my respectful view, the appeal should be dismissed.



















(signed) O'LINN, A.J.A.



















COUNSEL ON BEHALF OF THE APPELLANT: Mr. P. Ellis (informa
pauperiis)



(Ellis & Partners)





COUNSEL ON BEHALF OF THE RESPONDENT: Mr. A.H. Potgieter



(Prosecuter-Genereal)











/mv



1
S v Tsedi, 1984(1) SA 565(A)


S
v Absalom,
1989(3) SA 154 at 162 B - 166 D


S
v Cassidy
, 1978(1) SA 687(A) at 690 F - H


S
v Gopal
, 1993(2) SACR 584(A) at 585, c - d


Commentary
on the Criminal Procedure Act
by du Toit et al, the
footnote on p. 3I - 15




2
S v Coetzee & Ors, 1997(3) SA 527 (C).




3
Myburgh v Commercial Bank, NmS, December 2000, unreported




4
Criminal Law by Snyman, 3rd ed. p. 487




5
IBID, 493/494 and the decisions referred to in footnote 57.




6
South African Criminal Law and Procedure, Vol. 2, Common
Law Crimes,
3rd ed., by Milton,



730/731. See also the decision of Stegman in Ex
Parte Lebawa Development Corporation Ltd.,
1989(3) SA 71 (T) at
101 G - I where the two distinct representations made, are dealt
with - one amounting to dolus directus and the other to dolus
eventualis.




7
S v Van Wyk, 1993 NR 426 NmSC at 434H - 435G


S v
Haikele & Ors
, 1992 NR 54 (HC) at 63 C - 64 A




8
R v Myers, 1948(1) SA 375 (A) at 382




9
South African Criminal Law and Procedure, Vol. II, Common
Law Crimes,
p. 728 See also: Criminal Law, 3rd
ed. by Snyman, 491.